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Book Review: Terrorism, War and International Law (Myra Williamson)

This occa­sion­al series will high­light the book anno­ta­tions that con­sti­tute the back pages of every issue of the NYU Jour­nal of Inter­na­tion­al Law and Pol­i­tics.  We are begin­ning with this review of Myra Williamson’s Ter­ror­ism, War and Inter­na­tion­al Law: The Legal­i­ty of the Use of Force Against Afghanistan in 2001, because it rais­es the cru­cial ques­tion of the right of States to use force in self-defense against non-State actors.  This issue sits in the back­ground of much of the current debates about the use of force, most recent­ly in Pro­fes­sor Alston’s Tar­get­ed Killings report.

By Gra­ham F. Dumas

Myra Williamson’s Ter­ror­ism, War and Inter­na­tion­al Law: The Legal­i­ty of the Use of Force Against Afghanistan in 2001 comes at a time when the con­flict in Afghanistan is return­ing to the fore of U.S. for­eign pol­i­cy and as the fight against ter­ror­ism con­tin­ues to expand. Yet many of the legal ques­tions sur­round­ing this con­flict were sim­ply glossed over at the time of the invasion and have not yet been sat­is­fac­to­ri­ly resolved.

Bas­ing her argu­ment main­ly on legal his­to­ry, Williamson asserts that the use of force against Afghanistan could not be legal­ly con­sid­ered self-defense accord­ing to the U.N. Char­ter because there was no armed attack for the pur­pos­es of Arti­cle 51, because the Secu­ri­ty Coun­cil did not autho­rize uni­lat­er­al force in Res­o­lu­tion 1368, and because Al Qaeda’s actions could not be attrib­uted to the Tal­iban. Sim­i­lar­ly, the author argues that the inva­sion of Afghanistan was not legal under cus­tom­ary inter­na­tion­al law because it was nei­ther nec­es­sary nor pro­por­tion­ate, and there was no imme­di­ate threat of attack in the weeks fol­low­ing Sep­tem­ber 11.

In vig­or­ous­ly assert­ing the ille­gal­i­ty of the inva­sion of Afghanistan, Williamson rais­es a num­ber of inter­est­ing points
and pro­vokes a great deal of thought, espe­cial­ly with respect to the many weak­er links in the argu­ment for the invasion’s law­ful­ness. As she notes, the Inter­na­tion­al Court of Jus­tice (ICJ) has held on numer­ous occa­sions that Arti­cle 51 applies only to armed attacks by states, and the link between Al Qae­da and the Tal­iban is indeed ten­u­ous, espe­cial­ly under a clas­si­cal inter­pre­ta­tion of the law. Par­tic­u­lar­ly insight­ful is the study of the opinio juris of var­i­ous NATO mem­bers with respect to that organization’s dec­la­ra­tion that an armed attack occurred; the author sug­gests that what appeared to be a unan­i­mous dec­la­ra­tion that Sep­tem­ber 11 was suf­fi­cient to trig­ger the inher­ent right of self-defense was in fact any­thing but. Despite these effec­tive points, Ter­ror­ism, War and Inter­na­tion­al Law is a dis­ap­point­ing and ulti­mate­ly unsuc­cess­ful effort which leaves out more than it includes, treats as fact sev­er­al high­ly con­tentious claims nec­es­sary to sup­port the main the­sis, and often fails to address the post-Afghanistan era’s most press­ing legal questions.

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Thoughts on the Targeted Killings Report

By Ben Heath

To con­tin­ue the dis­cus­sion of Pro­fes­sor Philip Alston’s report on tar­get­ed killings, I can imag­ine no bet­ter dis­cus­sion on the self-defense ratio­nale for drone strikes than that pre­sent­ed by Marko Milanovic at the EJIL blog.  (At Opinio Juris, Ken­neth Ander­son promis­es a response, which will most cer­tain­ly pro­vide for inter­est­ing debate.)

I also ful­ly agree with Milanovic’s cri­tique of Alston’s asser­tion that, out­side of armed con­flict, “the use of drones for tar­get­ed killing is almost nev­er like­ly to be legal.”  This state­ment is unnces­sar­i­ly con­clu­so­ry: there should be some lim­it­ed room for these strikes in the law enforce­ment par­a­digm of human rights, pro­vid­ed that the tar­get pos­es a sig­nif­i­cant dan­ger, that no oppor­tu­ni­ty for cap­ture exists, etc.  One imag­ines that this might be the case in coun­tries where the gov­ern­ment holds only loose con­trol over wide swaths of ter­ri­to­ry.  But, to be sure, drone strikes on the New Jer­sey Turn­pike are almost cer­tain­ly illegal.

I would not pre­sume to step fur­ther into such well-cov­ered ground.  Instead, I will use this space to high­light some oth­er aspects of the report, while rec­og­niz­ing that these are def­i­nite­ly side­notes to the major issues.

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New Issue: Forum on Direct Participation in Hostilities

We are pleased to announce that the Spring 2010 issue of the Jour­nal of Inter­na­tion­al Pol­i­tics is now avail­able online.  The bulk of Issue 42:3 is ded­i­cat­ed to dis­cus­sion of the ICRC Inter­pre­tive Guid­ance on the Notion of Direct Par­tic­i­pa­tion in Hos­til­i­ties, which was released last year.  The Forum fea­tures four respons­es to the work Inter­na­tion­al Com­mit­tee of the Red Cross:

  • Brig. Gen. (Ret.) Ken­neth Watkin, of the Cana­di­an Forces, dis­cuss­es the con­cept of “orga­nized armed groups” in the ICRC document.
  • Prof. Michael N. Schmitt, of Durham Uni­ver­si­ty Law School, ana­lyzes the ICRC’s fram­ing of the con­sti­tu­tive ele­ments of “direct participation.”
  • Air Cdre. Bill Booth­by of the RAF focus­es on the tem­po­ral dimen­sion of direct participation.
  • Col. (Ret.) W. Hays Parks, of the U.S. Depart­ment of Defense Office of Gen­er­al Coun­sel, crit­i­cizes the document’s restraints on the use of force in direct attack.

The Forum also con­tains a detailed response from Nils Melz­er, legal advis­er to the ICRC and author of the Inter­pre­tive Guid­ance doc­u­ment.  Pro­fes­sors Ryan Good­man (NYU School of Law) and Derek Jinks (Uni­ver­si­ty of Texas at Austin; U.S. Naval War Col­lege, 2009-10) present a brief intro­duc­tion.

In addi­tion, Issue 42:3 con­tains two illu­mi­nat­ing dis­cus­sions of the TRIPS regime, the World Trade Organization’s agree­ment on intel­lec­tu­al prop­er­ty rights.  Both exam­ine the bilat­er­al IP treaties fre­quent­ly known as TRIPS-Plus, which gen­er­al­ly pro­vide IP pro­tec­tion above and beyond that guar­an­teed by the orig­i­nal muli­ti­lat­er­al TRIPS agree­ment.  Beat­rice Lind­strom focus­es on TRIPS-Plus agree­ments in Asia and the Pacif­ic, and aruges that they have neg­a­tive exter­nal effects on stake­hold­ers who are not rep­re­sent­ed in nego­ti­a­tions.  Matthew Turk presents a much more san­guine view of TRIPS-Plus.  He argues that, while defects in the bar­gain­ing process argue for a “pro-devel­op­ment” inter­pre­ta­tion of the orig­i­nal TRIPS agree­ment, no such defects exist­ed in TRIPS-Plus nego­ti­a­tions.  There­fore, he con­cludes that the terms of TRIPS-Plus treaties should be inter­pret­ed lit­er­al­ly, to best effec­tu­ate the intent of the parties.

The issue also con­tains our usu­al roundup of book anno­ta­tions, many of which will be post­ed on this blog in the com­ing weeks.  Click the jump for more on Direct Par­tic­i­pa­tion in Hostilities.

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Announcing Jerome A. Cohen Prize in International Law & East Asia

Sub­mis­sion Dead­line: 24 Sep­tem­ber 2010

In hon­or of Pro­fes­sor Jerome A. Cohen, who turns 80 on July 1, the New York Uni­ver­si­ty Jour­nal of Inter­na­tion­al Law and Pol­i­tics is seek­ing papers address­ing the inter­ac­tion between the inter­na­tion­al legal sys­tem and Chi­nese and East Asian law and legal thought.   East Asia’s dis­tinc­tive insti­tu­tions and legal sys­tems con­tin­ue to engage in a thought-pro­vok­ing con­ver­sa­tion with the glob­al legal order, one that chal­lenges tra­di­tion­al assump­tions about inter­na­tion­al law.  Such inter­ac­tion shows signs of effect­ing trans­for­ma­tive changes both with­in domes­tic sys­tems and at the inter­na­tion­al lev­el.  With the Jerome A. Cohen Prize, the Jour­nal of Inter­na­tion­al Law and Pol­i­tics will hon­or a nov­el con­tri­bu­tion to this grow­ing body of schol­ar­ship.  Papers may focus on any sub­stan­tive dis­ci­pline, although spe­cial con­sid­er­a­tion will be giv­en to work relat­ing to the sub­ject areas cur­rent­ly taught by Pro­fes­sor Cohen: crim­i­nal jus­tice, for­eign invest­ment law, and the role of Chi­nese legal thought in inter­na­tion­al law.

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